What's Next For Divided Supreme Court?

This is TELL ME MORE from NPR News. I'm Celeste Headlee. Michel Martin is away. The Supreme Court has been in the news quite a lot this week. That happens when they start handing out decisions, and there are some controversial cases - both regarding decisions on and coming up.

We wanted to find out about some of those and what's next. So we've called upon David Savage. He's the Los Angeles Times Supreme Court correspondent. He joins me in our Washington, D.C. studios. Also with me here in the studio is Amy Howe, editor and reporter for the SCOTUSblog. That's the Supreme Court of the United States blog. And she's with me here. Welcome to both of you.

DAVID SAVAGE: Hi.

AMY HOWE: Hi. Thanks for inviting me.

HEADLEE: So obviously, this week we've talked a lot about the decision on Tuesday over the Michigan ban on affirmative action. It was a 6 to 2 ruling, and notably, besides the decision itself, we got an epic 58 page dissent from Justice Sotomayor - longer than both of the other responses combined.

So, Amy, tell me about her dissent - what it was about. Did it relate just to the particulars of this case because it almost seemed like some of the messages she had were basically in general messages to the other justices?

HOWE: That's right. And one of the most interesting things about her dissent was that she decided to read it from the bench. This was the first time she's been on the court since 2009 that she has done so. And so she really picked a big one in which to do it. And so she did address the legal principles behind the court's decision and her arguments for why the court's decision was wrong.

But then there was a whole section of her opinion that, as you suggest, was devoted to the idea that race matters. It matters because there was this long history of inequality in our country. It matters because there's still persistent social and economic inequality based on race, she said. And it matters - and this was the part that was incredibly personal - because there are still slights and judgments, she said, based on race.

And so in a not-so-subtle jab at the chief justice's statement in a decision back in 2007 in which he said the way to stop this discrimination on the basis of race is to stop discriminating on the basis of race, she said the way to stop the discrimination on the basis of race is to talk very openly about it.

HEADLEE: So, David, what was the - do we know what the response of the other justices was to this? I mean, I imagine it was relatively uncomfortable in the courtroom.

SAVAGE: Yes. This was a very powerful dissent and strongly worded. I must say, though, there's a real divide on that, and she hit it very well. John Roberts and Justice Scalia basically say the equal protection clause says that no state may deny to any person the equal protection of the laws, and what we should do is say that means no race discrimination under any circumstances and for any reason.

So that's their very strong view, and she knows that. And she's - that's why her dissent was so powerful because, as Amy said, she kept saying to them, no, no, no, you don't really understand. Race still matters, and it's not good enough to just say it's over, let's treat everybody equal.

HEADLEE: And she said, you can't wish it away. If you have the time, it's a 58-page dissent worth reading. But let's talk about what's next. There was another case actually that revolved around the 4th Amendment. The 4th Amendment, of course, relates to unreasonable searches and seizures. This particular case asked whether police can stop a vehicle based on an anonymous tip, like you call in and say there's somebody's swerving all over the road. Amy, what was this decision about?

HOWE: This decision - there was an anonymous tipster who called police in California and said I've just been run off the road by a silver Ford, and here's the license plate number. And the police tracked down the truck, and they followed it for a couple of miles, didn't see anything wrong. But they pulled it over based on the anonymous tip. As they're going towards the truck to approach it, they smell marijuana. They search the truck. They find 30 pounds of marijuana.

And this was, you know, Justice Clarence Thomas whom we don't hear from that often had a - it's a joked aside when he was announcing the opinion. He said you probably shouldn't carry 30 pounds of marijuana around in your truck.

And so the question was whether or not that anonymous tip was enough to pull over a car in a situation like this. Police need reasonable suspicion that there is an ongoing crime, and that's based sort of on what they call the totality of the circumstances. You look at the whole picture, and you figure out what kind of information police had and whether or not that information was reliable. And here, the court said, this information was sufficiently reliable that the police could pull them over.

HEADLEE: If you're just joining us, we're speaking with Amy Howe, who you just heard, editor and reporter for the SCOTUSblog, and also David Savage of the Los Angeles Times Supreme Court correspondent. They were talking about the Supreme Court - some of the decisions they've make and what's coming up. And, David, there's another case that involves the 4th Amendment next week, and this one involves smartphones. And, again, the 4th Amendment is unreasonable searches and seizures. What's this one about?

SAVAGE: Well, this is the question is if the police stop you and arrest you, the normal rule is that they can take your belongings, you know, something in your pocket. They can pick up anything and look at it. Well, what about your smartphone? Can the police sort of take your smartphone, download everything, track it, get all of your information? Or do they need some search warrant? Do they need you to go to a judge? And so this is a big question about sort of...

HEADLEE: You mean, when you're arrested - i.e. you get arrested, they take all of your things off of you. This is, can they, without a warrant, look through all the data on your smartphone?

SAVAGE: Yes, that's exactly it because the old rule was that the police can - anything that's incident to arrest. And the theory was that is well, what if you've got a gun in your pocket? They want to check your pockets, and they don't want you to destroy evidence. You've got a little note says I'm going to this house to sell drugs. So they could take what's in your pockets and look at it.

But, as you know, as your question suggests - a smartphone is quite a different matter. I mean, it's basically, the argument is, the old 4th Amendment says secure in your houses and personal effects - papers and effects. And there's sort of an old argument that says, hey, in our time our papers and effects are really what we've got on our smart phone. And the police shouldn't be able to just look through all that based on the fact that they've stopped you and arrested you.

HEADLEE: OK, so that's coming up next week. Let's talk about another decision. And this was a decision made in a case about victims of child pornography and who they can sue for restitution. And of course in an incident of child pornography, it could be thousands of users, right, Amy? I mean this is a 5 to 4 decision, so relatively close. Why was it so controversial? Why was the vote so close?

HOWE: This was a - there's a federal law that says when you've got, among other things, victims of child pornography, and someone is convicted for possessing child pornography and, in this case, you're in that image. And so this is a young woman named - who goes under the pseudonym of Amy who, when she was 8-years-old, was abused by her uncle. He not only abused her, but he took pictures of the abuse and circulated them. And apparently images of Amy are now among the most widely circulated images of child pornography on the Internet. A

nd so the defendant in this case was a Texas man named Doyle Paroline, and he was convicted for possessing images of Amy. And using this mandatory restitution law that Congress passed, a lower court judge ordered him to pay $3.4 million dollars in restitution. And so the question is, what did Congress mean when it said that someone like Doyle Paroline should be required to pay restitution? Should he be liable for all of the damages that someone like Amy has suffered or some portion of it? And the problem is that the law that Congress passed doesn't specify how judges are supposed to figure this out.

And so when a 5 to 4 decision - and it was a very interesting lineup. And the four justices did not agree on exactly what should happen. But in an opinion by Justice Kennedy, five justices said, well, basically District Courts should - District Courts, the federal trial courts, should do their best to figure out how to allocate responsibility. And they can look at factors like whether or not this person had a role in producing the images, and whether or not this person had a role circulating the images and how many images there are.

But there's no magic formula here. The chief justice, in an opinion that was joined by chief Justices Scalia and Thomas, said this law was so arbitrary that whatever number that a judge assigns is basically going to be made up. And the criminal law doesn't allow that. And then Justice Sotomayor also dissented, but she would've said that Doyle Paroline could be held liable for the whole $3.4 million.

HEADLEE: David, does this have relevance to other digital - I mean, things of liable? I mean, does this have relevance to people and the Internet at all feel as though they deserve damages?

SAVAGE: Well, no. The law refers to victims of child sexual exploitation, but the law was basically unused - this part of it - for about 20 years. So this is sort of a new thing. And I think actually more good than bad for victims of child pornography because, as you say, this is one of these crimes that was always horrible and has gotten worse because, as somebody said - one of the lawyers said the other day - this used to be about old photos in shoeboxes.

Now these photos are on the Internet and they circulate and they're there forever. And this - the court basically said, every person who is caught with those illegal images can be required to pay restitution and that the U.S. attorneys, the federal government, is responsible for going into court and saying, this victim deserves restitution. The only debate is how much. You know, it could be $5,000. It could be $10,000.

But it seems to me this sort of opens a whole new chapter for victims to register with the government and some of these victims' rights groups have been tracking this child pornography and going to court in case after case after case, and say to these defendants, you have to pay restitution to this victim of, you know, this earlier sexual abuse.

HEADLEE: We don't have a huge amount of time left, but I at least wanted to get from both of you quickly what case you're most looking forward to. Amy, what do you think?

HOWE: Well, I'm looking forward to the cell phone privacy cases. I mean, this is something that affects everyone, and as with the decision in the anonymous tipster case, when you've got cases involving the 4th Amendment, they rarely divide on this sort of traditional, ideological lines.

And so Justice Scalia was one of the dissenters in the anonymous tipster case that we talked about earlier. And so it will be very interesting at the oral argument next week to see what the justices' concerns are. I mean, they all have smartphones and are interested in privacy, too At the other end is that they are not the most technologically savvy...

HEADLEE: That does shock me.

>>HOWE; ...Group of nine people that you will find. And so they may want to proceed very, very cautiously in this case.

HEADLEE: David, what case are you looking forward to?

SAVAGE: I think the one that will get the most attention in the spring is this question about whether corporations and employers have a religious right, a religious freedom right not to pay for contraceptives for their employees because that's a big deal. It's a political issue. It's a health issue. It's a religious issue. And it's likely to divide the court 5-4.

HEADLEE: I would imagine. David Savage, Supreme Court correspondent for Los Angeles Times and Amy Howe, editor and reporter for the SCOTUSblog. Thanks to the both of you.